United States District Court, S.D. New York
Michael Ferrara, Esq. Stephanie L. Lake, Esq. Assistant
United States Attorneys United States Attorney's Office
Southern District of New York Ms. Lidya M. Radin c/o Mr. Joe
OPINION AND ORDER
PITMAN United States Magistrate Judge.
motion dated January 5, 2017 (Motion to Disqualify Magistrate
Pitman for Bias & as a Material Witness, dated Jan. 5,
2017 (Docket Item ("D.I.") 21) ("Motion to
Disqualify")), defendant moves pursuant to 28 U.S.C.
§§ 144, 455 to disqualify me for being both biased
and a material witness; defendant also raises a host of
other, unrelated legal issues. For the reasons set forth
below, defendant's motion is denied in all respects.
January 28, 2016, defendant allegedly pushed a Court Security
Officer on the 20th floor of the United States Courthouse
located at 500 Pearl Street, New York, New York (the
"Courthouse") after being directed by court
security personnel not to enter an elevator. As a result,
defendant was issued a United States District Court Violation
Notice, citing her for a violation of 18 U.S.C. §
111(a)(1) (Government's Opposition to Defendant's
Motion to Disqualify, dated Jan. 19, 2017 (D.I. 27)
("Gov.'s Mem."), Ex. A).
separate incident, on July 7, 2016, defendant allegedly
refused to comply with an instruction from court security
personnel to leave the Courthouse. She also allegedly yelled
and screamed in the lobby of the Courthouse. As a result,
defendant was issued two additional United States District
Court Violation Notices, citing her for violations of 41
C.F.R. §§ 102-74.385, 102-74.390(a) (Gov.'s
Mem., Ex. B).
September 26, 2016, the Government filed a Superseding
Misdemeanor Information against defendant with respect to the
January 28 and July 7, 2016 incidents. Counts One and Three
charged defendant with violating 41 C.F.R. § 102-74.385,
a Class C misdemeanor. Count Two charged defendant with
violating 41 C.F.R. § 102-74.390(a), also a Class C
misdemeanor (Superseding Misdemeanor Information, filed Sept.
26, 2016 (D.I. 12)).
was arraigned on the Superseding Misdemeanor Information on
November 10, 2016. Because defendant refused to enter a plea,
I entered a plea of not guilty on her behalf (November 10,
2016 Transcript (D.I. 25) ("Nov. Tr."), at
has been advised of her rights, including her right to
counsel, on multiple occasions. Nevertheless, defendant has
refused representation at all times and is proceeding pro
se (July 7, 2016 Transcript (D.I. 16), at 8:2-8:12,
10:18-10:24; August 26, 2016 Transcript (D.I. 18), at
7:3-8:15; September 23, 2016 Transcript (D.I. 23), at
addition to her claim that I am biased and will be a material
witness, defendant also alludes to a number of other
arguments in her sprawling submissions. Each of
defendant's arguments, to the extent they can be
discerned from her submissions, will be addressed in turn.
appears to assert two grounds for disqualification. First,
defendant claims that I "colluded and conspired with
[the Honorable Debra] Freeman and [Andrew J.] Peck[, United
States Magistrate Judges, ] in trying to deceive [defendant]
that [Judge] Peck had signed an Order on October 20, 2015
dismissing the case against [defendant] in federal district
court in [ticket number] H5118158 . . . thereby disqualifying
[me] from any ruling in [defendant's] case(s)" and
that my courtroom deputy and I are witnesses to the alleged
conduct that gives rise to the charges against defendant
(Motion to Disqualify, at 12). Second, defendant claims that
I "colluded and conspired in more sham proceedings"
by refusing to allow defendant's associates to sit in the
well of the courtroom during a pretrial conference (Motion to
Disqualify, at 11).
28, United States Code, Section 144 provides that
"[w]henever a party to any proceeding in a district
court makes and files a timely and sufficient affidavit that
the judge before whom the matter is pending has a personal
bias or prejudice either against [her] or in favor of any
adverse party, such judge shall proceed no further
therein." Title 28, United States Code, Section
455(a) and (b)(1) provides, in pertinent part, that
"[a]ny justice, judge, or magistrate judge of the United
States shall disqualify himself in any proceeding in which
his impartiality might reasonably be questioned, " or
"[w]here he has a personal bias or prejudice concerning
a party, or personal knowledge of disputed evidentiary facts
concerning the proceeding." In assessing a motion for
recusal, the relevant inquiry is "whether an objective,
disinterested observer fully informed of the underlying
facts, [would] entertain significant doubt that justice would
be done absent recusal, or alternatively, whether a
reasonable person, knowing all the facts, would question the
judge's impartiality." United States v.
Yousef, 327 F.3d 56, 169 (2d Cir. 2003) (alteration in
original; internal quotation marks omitted); accord Dekom
v. New York, 583 F.App'x 15, 17 (2d Cir. 2014)
defendant's assertions of misconduct are factually
baseless and based on misrepresentations of the record. With
respect to her first claim, I did not deceive defendant in
any way. When defendant asked where prior Violation Notices
had been filed, I explained that I did not know the answer
and that defendant could go to the Clerk's Office to
inquire (Nov. Tr., at 9:5-11:3). When defendant presented a
document, which was presumably an order dismissing a prior
Violation Notice, I read from the document and noted that it
"says so ordered, [so] this is an order" (Nov. Tr.,
at 11:15-12:3). Far from deceiving defendant, I clarified
the record and addressed the issues she had raised.
defendant has not set forth any facts demonstrating that my
courtroom deputy or I have personal knowledge of any of the
events in the Superseding Misdemeanor Information. Neither my
courtroom deputy nor I witnessed either the January 28 or
July 7 incidents.
claim of bias is legally deficient. In order to constitute a
basis for recusal, the alleged bias must have an
extrajudicial source, i.e.., the claim must be based on
something other than the judge's in-court rulings and
case management decisions.
[T]he fact that Plaintiff-Appellant and Appellants were
unhappy with the district court's legal rulings and other
case management decisions is not a basis for recusal, and
under no circumstances justifies the utterly unsubstantiated
allegations of . . . dishonesty . . . and fraud lodged
against the district court. See In re Int'1 Bus.
Machs. Corp., 618 F.2d 923, 927 (2d Cir. 1980)
("'The alleged bias and prejudice to be
disqualifying [under 28 U.S.C. § 455] must stem from an
extrajudicial source and result in an opinion on the merits
on some basis other than what the judge has learned from ...